Summary

Quantitiative analysis of HRW’s publications in 2008 reflect the portrayal of Israel as the second worst abuser of human rights in the Middle East. Only Saudi Arabia received more attention, with chronic human rights abusers Iran, Syria, Jordan and Egypt receiving less.

Analysis of HRW’s use of international legal and human rights terminology to condemn Middle Eastern states demonstrates unjustified emphasis that singles out Israel. HRW ignores Palestinian terrorists’ use of human shields.

In 2008, Israel and the Palestinians were the only countries in the Middle East region suspected or accused of “war crimes” by HRW: Israel on six occasions, and the Palestinians in one instance for suicide bombings. HRW placed Israel on par with Sudan, leaders from the former Yugoslavia, Congo and Uganda.

In 2008 HRW does not call for the release of, or Red Cross access to captured Israeli soldier Gilad Shalit.

Israel was condemned for violations of “human rights law”, “humanitarian law”, or “international humanitarian law” (IHL) 33 times, compared with 13 citations for the Palestinians, 6 for Hezbollah and 5 for Egypt.

The evidence suggests that HRW’s Middle East personnel approach the Israeli- Palestinian conflict from a post-colonialist ideological perspective, rendering Israel a special case in the Middle East. The double standards and political bias expressed by senior HRW officials in the Middle East Division reinforces this interpretation (see examples below). And the significantly different tone exhibited when reports on Israel involve other HRW departments, indicates that personal political agendas influence reporting. This is clear for Sarah Leah Whitson, Joe Stork, Marc Garlasco, Lucy Mair, and in the addition of Nadia Barhoum in 2008.

This report includes quantitative analyses of publications from HRW’s Middle East and North Africa section, using a weighted scale methodology consistent with NGO Monitor’s previous analyses, and an assessment of the use of language in HRW‘s publications.

Agenda Analysis

Israel second only to Saudi Arabia as worst human rights abuser in Middle East

In 2008, HRW’s Middle East coverage narrowed compared with recent years, with much fewer countries receiving significant attention1, and exhibited a disproportionate interest in Saudi Arabia and Israel. Even before the Gaza conflict ignited on December 27, 2008,2 (which provoked the publication of a press release and “Q&A” document before the end of the year), the focus of HRW’s publications portrayed Israel as the second worst abuser of human rights in the Middle East.

This study employs the quantitative method used by NGO Monitor beginning in 2004,3 to count the number of HRW publications on each Middle Eastern country and weight the types of publications for resource consumption and relative impact. The only methodological change in 2008, was an adjustment in the weighting system, to reflect changes in HRW’s website and categorization. (See appendix for more details).

The analysis found that HRW focused most on Saudi Arabia (184 points), followed by Israel (131 points), then Iran (123), Jordan (101), Egypt (99) , the Palestinians (66)4, Syria (58), Libya (55), Yemen (48), Morocco (45), Tunisia (31), Bahrain (27), Algeria (21), Kuwait (8) and UAE (8). Publications on Israel comprised 12% of the total, compared with 10% in 2007, 20% in 2006 (due to the Second Lebanon War) and 8% in 2005. This percentage fluctuation may not seem significant (other than the 2006 figure which can be considered an outlier), but the narrower range of countries covered in depth,5 combined with a steady growth in the level of resources devoted to documenting allegations of Israeli human rights violations, resulted in Israel receiving more attention than Iran, Egypt, Libya, Syria, and other chronic human rights abusers in the region.

Chart: Proportion of HRW resources devoted to each Middle Eastern country in 2008

(Note that Iraq and Lebanon are included under the same criteria as previous years. See Appendix for details).

The graph below shows how HRW’s relative focus has changed since 2005. Focus on Syria and Jordan has risen steadily, while attention to Iran and Egypt is falling. Israel’s line reveals a steady increase, if the 2006 figure is excluded.

The level of attention on the Palestinians remained constant at 6% (the same as in 2007). But to HRW’s credit, it published a 113 page report on the Palestinian’s “Internal fight” in July 29, 2008, an important change since 2007.

Qualitative Analysis of Language in HRW Publications

A qualitative analysis of HRW’s use of international legal and human rights terminology to condemn Middle Eastern states, demonstrates a strong bias against Israel. (Terms were counted when they specifically condemned the country government – hence a separate category was designated for Hezbollah, to avoid confusion with the Lebanese government).

In 2008, HRW used “war crimes” in relation to the Israeli-Palestinian conflict seven times. In six instances the accusation was directed at Israel, and once6 it was used to describe “indiscriminate Palestinian rocket and suicide bomb attacks against Israeli civilians.” (In numerous other cases when suicide bombings are not mentioned, HRW notably fails to label rocket attacks as war crimes). No other Middle Eastern state was accused of “war crimes” in 2008. A search of HRW’s website for the use of this term in 2008 returned 213 results, concentrated on Sudan, leaders of the former Yugoslavia, Congo and Uganda.

Israel was condemned for “violations of human rights law”, “humanitarian law”, or “international humanitarian law” (IHL) 33 times, compared with 13 citations for the Palestinians, 6 for Hezbollah and 5 for Egypt.

HRW accused Israel of “illegal” or “unlawful” activity, or “violating the law” 26 times in 2008, compared to 17 citations for the Palestinians, 6 for Yemen, and less than 4 citations for other Middle Eastern countries.

Accusations of “international law violations” were also primarily directed at Israel: 15 citations for Israel, 9 for Iran, and 6 for the Palestinians.

This table provides strong evidence that HRW singles out Israel for special attention, and applies unique standards compared with other countries in the Middle East. Israel is subject to particularly harsh and unjustified condemnation, using terms that delegitimize its policies and military operations. The peak in Palestinian numbers in the chart shows a limited attempt at “balance” in HRW coverage of the Israeli-Palestinian conflict, including limited acknowledgement of Palestinian human rights violations, reflecting an adjustment following previous NGO Monitor analyses.

Double Standards

In one of three items7 and in only three instances does HRW label them “deliberate” (while only calling them “war crimes” in one instance, when grouped together with suicide bombings).8

HRW’s three press releases published within days of the cameraman incident and its choice of language demonstrate the disproportionate focus aimed at Israel. Only one month before this incident, HRW remained silent following the Mercaz Harav Seminary attack in Jerusalem on March 6, 2008, where a Palestinian opened fire in a school library, killing eight youths and wounding 11 others. This was a deliberate attack targeting children in violation of law under any standard. Sarah Leah Whitson’s only mention of the crime, however, was in passing in a document condemning Israel’s proposed response, to demolish the terrorist’s home. Whitson states, “The assault on Mercaz Harav seminary… [was] appalling, but Israel shouldn’t respond by trampling on basic rights…the house demolition measures would violate international law because they punish people who are not even accused, let alone convicted of a crime.”9 (Israel did not destroy the house.)

Omission of Human Shields

In sharp contrast, HRW has been far slower in responding to internal Palestinian violence in which Israel is not involved. While repeatedly condemning Israel for its “failure to take all steps feasible to minimize civilian loss… in Gaza,”10 HRW does not address the culpability of Hamas, Islamic Jihad, and others, who choose to launch rockets from heavily populated civilians areas. In 49 references to “civilians” in HRW documents related to Palestinians in 2008, every instance that ascribed blame called on Israel to protect Palestinian civilians, erasing Hamas’ role – its responsibility and negligence in protecting non combatants in clear violation of the rule of distinction under IHL. Joe Stork’s11 comment summarizes this attitude:

“Israel has an obligation during military operations to minimize civilian deaths… The continuing high civilian casualty rates in Gaza suggest that this obligation is not being met.”

This omission of “human shields” from a human rights analysis of any asymmetric combat adds to the overall distortion, and to HRW’s highly misleading characterization of many aspects of the Gaza situation.

HRW’s distortions of International Law in relation to Gaza

In 2008,12 HRW published 18 condemnations of Israel’s response to deliberate attacks launched from Gaza and aimed at civilians. These statements exploit international legal terminology, repeat incomplete or false analyses of international law, and minimize or omit Hamas’ attacks on Israeli border crossings where humanitarian aid is delivered, as well as the diversion of this aid by Hamas. Far from carefully written, accurate and well-sourced legal analyses, these publications reflect a dominant political agenda.

Claim: Israel’s restrictions on the flow of goods and services into Gaza “constitute [s] collective punishment against the civilian population, a serious violation of international humanitarian law.”

Analysis: HRW continues to apply the label of “collective punishment” selectively and incorrectly to Israel (see NGO Monitor’s analysis here). Restriction on the flow of goods in a war environment does not constitute “collective punishment” under international law. “Collective punishment” refers to the imposition of criminal penalties and not to the legal act of retorsion (e.g. sanctions, blockades). Pursuant to Article 23 of the Geneva Convention (which sets standards for the provision of limited humanitarian aid),13 Israel has no obligation to provide any goods, even minimal humanitarian supplies, if it is “satisfied” that such goods will be diverted or supply of such goods will aid Hamas in its war effort. Israel is also bound by several international treaties restricting the financing and support of terrorism. Provision of goods that ultimately aid Hamas in its terror campaign would place Israel in breach of these legal obligations. As numerous credible accounts have reported, Hamas has diverted supplies from Gaza’s civilian population, but this is omitted from HRW reports.

Although Israel is under no legal obligation and despite the diversion as well as attacks on the Israeli border crossings, including the April 9 attack on the Nahal Oz fuel depot and the May 22 truck bomb attack at the Erez crossing, Israel continued to provide hundreds of tons of humanitarian supplies to Gaza on a weekly basis. This is above and beyond any obligation under international law, and the claim of “collective punishment” can best be explained as part of HRW’s post-colonial ideological filter.

Claim: HRW argues that the deliberate targeting of civilians by Hamas ” [does] not permit unlawful actions – in this case collective punishment – by the other.”

Analysis: This claim attempts to portray Israel’s lawful right to exercise self-defense against attacks on its civilians as a violation of international law. As shown above, Israel is not engaging in “collective punishment,” nor are Israel’s actions in any way “unlawful.” Indeed, under international law, the only legitimate uses of force are for purposes of self-defense or pursuant to Security Council authorization under Chapter VII of the UN Charter. Article 51 of the UN Charter, states: ” [n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Israel, therefore, has the unequivocal right to engage in self-defense to prevent attacks against its civilian population.

Analysis: Gaza cannot be considered “occupied” under any reasonable interpretation of international law. HRW claims that Gaza is occupied because Israel “still maintains effective control over the territory via its control of Gaza’s land borders, airspace, [and] territorial waters”. This argument is false both as a matter of fact and a matter of law, and largely parrots a “legal” opinion circulated by the PLO prior to Israel’s disengagement in August 2005. Under both the Hague and Geneva Conventions, as well as judicial interpretation of these provisions,14 the standard of “effective control” refers solely to the exercise by a hostile army of governmental authority – not control of borders. Thus, in no way can Israel be said to exercise governmental authority in Gaza. Indeed, as Egypt controls the southern border of Gaza, and based upon its occupation of Gaza from 1948-67, under HRW’s reasoning, Egypt would also be considered to be occupying Gaza. Instead, these claims also reflect the impact of ideology in HRW publications.

Claim: Gaza continues to be occupied because Israel “maintains effective control over… tax collection, and population registry.”

Analysis: The statement that Israel controls tax collection and the population registry in Gaza is also clearly false and HRW provides no source to support this allegation. Beginning in 1994, the Palestinian Authority became responsible for the establishment and collection of all taxes within Gaza, and this is now controlled by Hamas following its June 2007 coup. Israel has no power to set or collect such taxes. Pursuant to international agreement, Israel collects custom duties for cross-border transactions on behalf of the PA, but only a highly distorted interpretation would conclude that Israel is “controlling” tax collection in Gaza. Moreover, Israel has no control over what population registry the PA and Hamas choose to use (the fact that the PA and Hamas continued to use of the population registry system established by Israel following 1967 is not Israel’s decision.) [NGO Monitor contacted HRW a number of times requesting information on the source of these claims, but received no response].

Claim: Gaza continues to be “occupied” because “Israeli military forces can and regularly do re-enter Gaza at will.”

Analysis: Again, territory is considered “occupied” under international law solely if the hostile army exercises the functions of “governmental authority.” The test is not whether an army has the potential to enter a territory to conduct military operations.

HRW’s Middle East Division Driven By Post-Colonial Ideology

When HRW was awarded the United Nations Prize for Human Rights in November 2008, Kenneth Roth commented “By raising the cost of abuse, we make governments think twice about violating the rights of their people.” But the inconsistencies in HRW’s agenda and the excessive focus on Israel, suggest an alternative hypothesis: that HRW’s approach to the Israeli-Palestinian conflict is rooted in a post-colonialist paradigm, which defines Palestinians as victims, and views Israel as a perennial aggressor. The double standards and political bias expressed by senior HRW officials in the Middle East Division reinforces this interpretation (see examples above). And the significantly different tone exhibited when reports on Israel involve HRW members from outside the Middle East Division, indicates that personal political agendas influence reporting. This is clear in the case of Sarah Leah Whitson, Joe Stork, Marc Garlasco and Lucy Mair, whose virulent anti-Israel approach is apparent in their publications.15

The addition of Nadia Barhoum, a pro-Palestinian campus activist, to HRW’s Middle East and North Africa Division, also reflects and reinforces these agendas. Barhoum was an active member in Students for Justice in Palestine (SJP) at the University of California, Berkeley. SJP promotes the Durban agenda of demonization of Israel, using terms such as “apartheid,” as well as accusations of “mass atrocities.” In promoting divestment, Barhoum wrote: “Our university should not profit from bloodshed. Our university should not invest in apartheid.”16

In contrast, when HRW researchers from other departments are involved in reports, Israel is not singled out for vilification. This can be seen in the November 2008 “Sinai Perils” report, which was authored by “Bill Van Esveld, Arthur Helton fellow” [a sponsorship scheme for young lawyers to pursue a career in protecting refugee rights]” and edited by Bill Frelick, director of the Refugee Program and Policy Program, in addition to Stork. This report condemns Israel for an inconsistent policy that includes returning migrants to Egypt and “arbitrary” and “prolonged” detentions, yet it does not employ demonizing rhetoric or double standards in its analysis. Moreover, the report devotes significant attention to grave abuses by Egyptian soldiers and government officials such as the shooting of migrants attempting to cross into Israel, arrests, disappearances, denial of asylum, and the denial of medical care to migrant-prisoners. This is a marked difference to HRW’s coverage of Gaza originating in the Middle East department where Egypt’s role is rarely, if ever, mentioned.

“Sinai Perils” stands in stark contrast as well to the March 2008 “Off the Map” report, written by Lucy Mair (who has a history of anti-Israel activism but has now left HRW) and edited by Joe Stork.17 NGO Monitor’s detailed analysis of the 130 page “Off the Map” report, examines the deceptive use of human rights terminology, simplification of the complex challenge of integrating the Bedouin community, and omission or distortion of factors that do not support HRW’s political message, including any mention of Egypt or Jordan.

Marc Garlasco’s joint authorship of the February, 2008 Report, “Flooding South Lebanon” is also suspect, given his dubious qualifications and record of anti-Israel reporting at HRW. (It was Garlasco who led HRW’s high profile “investigation” into the Gaza Beach incident in 2006, and repeated the claims that “the evidence overwhelmingly supports the allegations that the civilians were killed by artillery shells fired by the IDF” accepting the Palestinian position. He ignored detailed evidence to the contrary, including shrapnel removed from the victims taken to Israel for treatment. Garlasco was also among the authors of HRW’s “Razing Rafah” report of 2004, which contained many unverifiable and disputed claims, erased the context of terror, and was used to justify HRW involvement in anti-Israel boycott campaigns.) Garlasco’s 2008 report alleges that “the IDF’s use of cluster munitions was both indiscriminate and disproportionate, in violation of IHL, and in some locations possibly a war crime.”

Conclusion

HRW’s Middle East coverage continues to reflect deep biases in its agenda and reporting. The disproportionate focus on Israel in 2008 resulted in the shift of resources and attention from far more serious human rights violations in other countries. Despite some valuable attention on intra-Palestinian fighting, HRW’s still blames Israel alone for civilians deaths in Gaza, erasing the context and ignoring the extensive use of human shields by Hamas. HRW officials also distort international legal terminology and repeat false or incomplete analyses of international law in order to promote their political view of the conflict in Gaza. These phenomena can be attributed to the radical political ideologies of senior members of the Middle East Division, a systemic problem which must be addressed if HRW is to salvage any legitimacy in its coverage of the Middle East.

Footnotes

In 2007 HRW wrote at least one country report on 13 countries. In 2008, only 8 countries were covered in this depth. (Saudia Arabia was the subject of 5 country reports).

The quantitative part of this report covers the period from January 1, 2008 to December 22, 2008. It does not include HRW’s coverage of the Gaza conflict.

To review NGO Monitor’s quantitative analyses of HRW’s Middle East coverage since 2004, see

The 3 items are “Israel: Investigate Death of Gaza Civilians,” April 18, 2008; “Israel: Independent Probe Needed In Gaza Killings,” May 1, 2008 and ” Letter to IDF JAG on investigation into Death of Four Civilians,” April 30, 2008./fn] covering the accidental death of a Reuters cameraman in Gaza, Joe Stork alleged that, “Israeli soldiers did not make sure they were aiming at a military target before firing, and there is evidence suggesting they actually targeted the journalists…” Stork continues, “Anyone who deliberately or recklessly attacks civilians commits a war crime.” In contrast, HRW condemns Palestinian rocket attacks as “unlawful” and “violations of international humanitarian law,” yet repeatedly avoids suggesting that they deliberately target civilians. In the majority of reports, these attacks are labeled “indiscriminate …because they are highly inaccurate and cannot be directed at a specific military target,”[fn]“Letter to Hamas to Stop Rocket Attacks,” HRW, November 20, 2008. Other similar characterizations of rocket attacks are made throughout HRW’s statements on Gaza in 2008.

The 3 citations are in “Written Statement on Gaza to the UN Human Rights Council”, January 21, 2008; “Gaza Strip, Civilians bear brunt of attacks,” February 28 ,2008; “Letter to Hamas to Stop Rocket Attacks,” November 20, 2008. The singular instance of rocket attacks being termed “war crimes” in 2008 is in “Gaza: Israel’s Energy Cuts Violate Law of War,” February 6, 2008: ” Human Rights Watch said that indiscriminate Palestinian rocket and suicide bomb attacks against Israeli civilians constitute war crimes, but Israel’s attempts to suppress those attacks must not also violate international humanitarian law.”

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

The Power which allows the passage of the consignments indicated in the first paragraph of this Article may ma permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.

It is argued that Article 23 does not apply to the case of Gaza. If that is so, then Israel is under no legal duty to provide even the minimal humanitarian supplies listed in Article 23.

See, e.g., The Hostages Trial, Trial of Wilhem List, United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume VIII, 1949, at 55-6, available here (holding that “an occupation indicates the exercise of governmental authority to the exclusion of the established government… To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied”.)

In this analysis I am excluding mention of the Program directors that seem to be involved in editing all HRW reports. I assume that their role is one of final quality control and that they do not have the time or the necessary knowledge to query the core research and portrayal in the report.